Note that I did not say “winning” your divorce. As a general rule, no one wins a divorce case; instead the court tries to be as fair to both as possible and both sides get something. While there are those people who look forward to taking the other spouse to court, most people just want to get the case settled. For those people, here are six tips that might help:
1. Hire an attorney who is a problem solver. I tend to divide divorce attorneys into two categories – problem solvers and hired guns. Hired guns tend to see their job as doing whatever the clients want, and they usually perceive that as beating up on the other party. Hired guns are more likely to end up taking the case to trial rather than getting it settled. Problem solvers tend to see their job as getting their client’s problem resolved. Problem solvers are more likely to find ways to get the case settled without having to drag their clients through a trial.
2. Don’t bully, listen. The tendency in a divorce is to ask “how do I force my spouse to agree to what I want”. The problem is that trying to make people do what you want makes them NOT want to do what you want. Aggression creates defensiveness. The harder you push, the harder they push back. A much better way to achieve your goals begins with listening carefully to find out what is most important to the other person. This is called interest based negotiation, as opposed to power based negotiation.
3. Look for what you need to give in order to get what you want. Think of it like making a business deal. To be able to make a deal, you have to find out what you need to do for the other party in order to induce them to what you want. This is why you have to listen carefully, you need to discover what is really most important to the other person, and you need to spend time thinking about what is really most important to you. Nobody is going to get everything they would like, so you have to prioritize the most important goals for each.
4. Look for what is behind the positions. People have a big tendency to come up with concrete statements as to what they want. “I want the house”, “I want $6000 per month”, “I want to the kids to live with me”, etc. Generally the motivation is more complex, however. Often these positions come from fear. The fears behind the positions may be things like “I am afraid of having to live in a cramped little apartment”, “I am afraid of not being to able to pay all my bills”, “I am afraid of losing my connection to the kids or being perceived as the lesser parent”. When you understand what the real motivation behind the position is, you are better able to address the real concerns.
5. Get creative – look for alternate solutions. Once you have any idea what your and the other party’s real interests, fears and concerns are, you can work with the other party to start making a list of the range of possible ways of addressing those issues. I.e., what are all the possible solutions to the problem we have to solve? It is important to include the other person in this brainstorming exercise, because the human tendency is to reject solutions from others and like solutions we have helped create. That is how you get buy-in. Once the range of options has been created, it gets trimmed down by rejecting the options that are least acceptable to either party. If an option is unacceptable to either person, then it is just not going to be able to form the basis for an agreement – better to move on to more acceptable options.
6. Leave a little on the table. Too often we want to make sure we get every penny we think we are entitled to. But doing so also has a price, and that price is bad will. Chances are you are going to be having to deal with the other person again in the future, and maybe even a lot. The more they feel like you have been fair with them, the more likely they are to deal reasonably with you now and down the road.